Despite a recent spate of killings, the president and fellow Democrats choose not to wage war on assault weapons.

Michael Isikoff and Suzanne Smalley

NEWSWEEK
From the magazine issue dated Apr 20, 2009

On the morning of April 4, Richard Poplawski had a quarrel with his mother. It was over a dog urinating on a carpet. Mom called the police to have her 22-year-old son evicted from her house, a brick ranch with a dirty aluminum awning in the Stanton Heights neighborhood of Pittsburgh. Two officers responded to the call, figuring it was a typical domestic dispute. Margaret Poplawski greeted them by saying, "Come and take his ***." But the younger Poplawski, who had been laid off from his job in a glass factory recently, had other plans. He went to a private arms cache in the house, retrieved his guns and strapped on a Kevlar bulletproof vest.

Poplawski shot officer Paul J. Sciullo II, 37, inside the house and hit 29-year-old Stephen Mayhle on the stoop. Both men fell dead. Poplawski calmly stood in the doorway and fired two or three more bullets into Mayhle's body, according to a police affidavit from a witness. Then he retreated into the house and fired hundreds of rounds, using an AK-47 assault rifle and other weapons to fend off a police SWAT team for four hours. He killed one other cop, 41-year-old Eric Kelly, and wounded yet another.

It was the deadliest day in the history of the Steel City's police department. When police finally apprehended and questioned Poplawski, he was without remorse. "He said he wishes he could have killed more Pittsburgh police officers," says a cop who was on the scene but asked not to be identified talking about an ongoing case. (Poplawski's lawyer did not respond to multiple requests for comment last week.)

There was a time when a creep like Poplawski would have become a potent symbol in the debate over gun control. He wasn't your run-of-the-mill malcontent. A white supremacist, he frequented the chat rooms of racist Web sites, where he posted screeds about a "Zionist occupation" bringing the country to economic ruin. But Keith Savage, manager of the Braverman Arms Co., where Poplawski got many of his guns (but not the AK-47, Savage claims), says nothing seemed amiss when he filled out Form 4473—the standard questionnaire for federally required background checks. The gun-shop staff had no way of knowing, for instance, about Poplawski's January 2005 discharge from the Marines for what Lt. Josh Diddams, a U.S. Marine Corps spokesman, tells NEWSWEEK was a "psychological disorder" (he had assaulted his drill sergeant during basic training, says Poplawski's mother). They probably also didn't know that Poplawski's former girlfriend had gotten a restraining order against him, later in 2005, after he grabbed her by the hair and threatened to kill her.

In the past, national political leaders might have raised troubling questions about how such an unstable character could obtain easy access to high-powered weapons. They might have been even more motivated given that Poplawski's cop-killing spree was part of a near epidemic of mass homicides that have left 58 people dead over the past month. Or given that Mexico's insanely violent drug cartels are arming themselves with high-powered assault weapons purchased at U.S. gun stores and later smuggled south of the border. Yet many past champions of stricter gun-control measures are silent. These include top Obama White House officials who have squelched any talk within the administration about pushing further gun-control measures."It's weird," says Peter Hamm, the communications director for the Brady Campaign to Prevent Gun Violence. "When you see people like [Attorney General] Eric Holder or Hillary Clinton or [White House chief of staff] Rahm Emanuel become muted on this issue, you feel like you want to call up a friend and say, 'What's up?' "

Running for president in last year's Democratic primaries, Barack Obama promised to restore a federal ban on certain semiautomatic assault guns—a position that's still on the White House Web site. The ban was originally passed by the Democratic-controlled Congress in 1994 and lapsed five years ago. In recent years the Bureau of Alcohol, Tobacco, Firearms and Explosives has also lifted virtually all restrictions on imports of foreign-made assault weapons, permitting a flood of cheap Romanian, Bulgarian and other Eastern European AK-47s to enter the country, according to gun-control groups. "There's been an absolute deluge of these weapons," says Kristen Rand of the Violence Policy Center.

But Obama and top White House aides have all but abandoned the issue. Emanuel helped orchestrate passage of the original assault-weapons ban when he worked in the Clinton White House. Now he and other White House strategists have decided they can't afford to tangle with the National Rifle Association at a time when they're pushing other priorities, like economic renewal and health-care reform, say congressional officials who have raised the matter. (According to his office, Emanuel couldn't be reached for comment because he was observing the Passover holiday.) A White House official, who asked not to be identified discussing internal strategy, says, "There isn't support in Congress for such a ban at this time." Ben LaBolt, a White House spokesman, says, "The president supports the Second Amendment, respects the tradition of gun ownership in this country, and he believes we can take common-sense steps to keep our streets safe," pointing to $2 billion in new funding for state and local law enforcement in the stimulus package.

Rep. Carolyn McCarthy, a New York Democrat, is one of those who are impatient with their party's silence. She has reason to be: a gunman firing randomly on a Long Island commuter train on Dec. 7, 1993, killed her husband, Dennis, and severely injured her son, Kevin. But when she pressed Obama transition officials to take up the issue, they were clear about their priorities: "They told me that's not for now, that's for later."
The word didn't get through to everyone in the administration, resulting in mixed messages—and blowback from the NRA. In February, Holder called for restoring the federal ban on assault guns to help curb the flow of weapons to the Mexican cartels. As soon as he made the call, however, the NRA launched a fierce lobbying campaign—and 65 House Democrats signed a letter vowing to resist any gun-control measures. In the Senate, Montana Democrats Max Baucus and Jon Tester sent their own warning. "Senators to Attorney General Holder: Stay Away From Our Guns," read the press release.

Within days, White House aides instructed Justice officials to stop talking about the assault-weapons issue, according to congressional and administration officials who asked not to be identified because of political sensitivities. (A Justice Department spokesman declined to comment.) Last week, in an interview with Katie Couric, Holder skirted questions about reinstating the assault-weapons ban and also about a gaping loophole that permits people to purchase arms at gun shows without background checks. "I understand the Second Amendment. I respect the Second Amendment," said Holder, after denying that he had been instructed to "back off" the gun-control measures.

continued...

Omega13device

04-12-2009, 12:11 AM

part 2 of 2
The new Democratic squishiness on guns is all about politics. Democratic leaders like House Speaker Nancy Pelosi and House Majority Leader Steny Hoyer are determined to protect the seats of "blue dogs" from rural districts who are essential to preserving the party's majority in the House. "The Democratic Party understands this is a losing issue … It's a dead loser," says Democratic Rep. Dan Boren, of Muskogee, Okla. "Its one of the reasons they lost the Congress in 1994 and Al Gore was not elected president in 2000."

Boren is a good example of the kind of young blue dog who now holds sway on this issue. A lifelong hunter who bagged his first deer at the age of 9—and has a stockpile of 15 guns at home—Boren is an NRA member who was elected last year to the lobby's board of directors. "I can tell you, that assault-weapons ban is just an excuse to take away a sportsman's shotguns," he says. Boren also understands the political dynamics of his district, in which Obama got only 36 percent of the vote (while Boren cruised to reelection with 70 percent). "For a Democrat to run in eastern Oklahoma, we can't support gun control. We shouldn't go back and refight old battles. This is an old debate."

The NRA loves blue dogs like Boren. The organization feels that it's stronger in Congress than it has been in at least two decades. Emboldened by a Supreme Court decision last year that affirmed Second Amendment rights, the lobby has pushed a series of congressional measures that are diluting gun restrictions. With virtually no public notice, the Senate recently passed an amendment to the budget bill that would reverse a post-9/11 policy and allow passengers to bring guns in their checked bags on Amtrak trains. (In passing the amendment by an overwhelming margin, the Senate ignored pleas by Amtrak officials that the measure could endanger safety.) More troublesome for Democratic leaders, an amendment eliminating most D.C. gun laws has been added to a historic bill giving the city's residents voting representation in Congress.

Gun-rights advocates argue that nuts like Richard Poplawski will always be able to kill people. He apparently bought his guns legally. His military discharge didn't count against him for gun purchases, because only a dishonorable discharge "adjudged" in a court-martial is a disqualifier for gun buyers. The restraining order against him had expired in 2006, so that didn't hurt him either. But gun enthusiasts argue that even if Poplawski had been banned from getting assault weapons, he would have found a way. One of the reasons he was stocking up on guns, says his mother, is because he feared Obama would take them away. "If you make guns illegal, only the people who don't follow the law will have them," says the Pittsburgh police officer who was at the scene of Poplawski's standoff.

Joanne Dubaniewicz, who watched much of Poplawski's massacre from her house across the street, thinks that's crazy. She is struggling with her memories of a wounded officer who was lying in the road. "The thing that is most upsetting is Officer Kelly started moving around," she says. "We watched him dying." Dubaniewicz is a trained nurse; she had a tourniquet and some bandages to help try to save Kelly, but she and her boyfriend—a combat war vet—were too scared to go outside. "Something is very, very wrong with the system," she says. That might sound like a sensible refrain. But you'll struggle to hear a leading Democrat repeat it these days.

Ford8N

04-12-2009, 5:24 AM

Rep. Carolyn McCarthy, a New York Democrat, is one of those who are impatient with their party's silence. She has reason to be: a gunman firing randomly on a Long Island commuter train on Dec. 7, 1993, killed her husband, Dennis, and severely injured her son, Kevin. But when she pressed Obama transition officials to take up the issue, they were clear about their priorities: "They told me that's not for now, that's for later."

This is disturbing.

It's what fuels EBR and ammo hording. But hopefully it brings more folks to join the NRA.

Omega13device

04-12-2009, 8:47 AM

It's clear they don't have the votes. I suspect they're hoping to gain enough seats in the next couple of elections to pass something over the "no" votes of the Blue Dogs. Unless that happens, or the mass killings continue to pile up, I don't see a ban happening. At a minimum I think we're good to go until November 2010.

BigDogatPlay

04-12-2009, 8:59 AM

My understanding was that the Pittsburgh shooter has a dishonorable discharge, which should be a bar to transfer no? And NICS, assuming he transferred at a gun shop, should have turned both that and being subject of a protective order, no?

tiki

04-12-2009, 9:20 AM

I've said it before and I'll say it again; they know that any ban would be challenged, ultimately, before the Supreme Court. Right now, they know that with the current court makeup, that is a losing battle. Once Obama gets to change the makeup of the Supreme Court, they will bring the ban. I think it is important to get incorporation and get a case dealing with an AR-15 or semi autos heard by the current court so we can get a favorable ruling.

lioneaglegriffin

04-12-2009, 9:27 AM

By the time 2010 roles around, there will be a hell of a lot more guns out there at this rate. The Antis are succeeding in nothing more than the arming of America.

Irony is sweet.

lioneaglegriffin

04-12-2009, 9:31 AM

I've said it before and I'll say it again; they know that any ban would be challenged, ultimately, before the Supreme Court. Right now, they know that with the current court makeup, that is a losing battle. Once Obama gets to change the makeup of the Supreme Court, they will bring the ban. I think it is important to get incorporation and get a case dealing with an AR-15 or semi autos heard by the current court so we can get a favorable ruling.

when was the last time a court overturned precident the immediatly after SCOTUS make-up changed? don't they need a case first. (which takes time as we all know). it took decades for Heller to trump Miller right so why would this be any different were the 2A magically goes back to being a collective right again.

VW*Mike

04-12-2009, 11:38 AM

I don't know. It seems like were are gaining ground. The writing is on the wall. There is Heller. Since the election, gun and ammo sales have sky rocketed. NRA membership has climbed. These I think are clear messages to the Anti-gun Dems that the citizens of this country want to keep their Second Amendment rights. I think they realize they would be wise to let sleeping dogs lie at this point. Obama and his staff are gaining no traction with all these other things they are doing. His first 100 days seem like they will be marked with failures. 2010 isn't likely to gain them anything. 2012 the country will be in a mess, with huge debt and spending problems, and the pendulum will swing back to the Right.

If the zombie Apocalypse hasn't wiped us out first!

hoffmang

04-12-2009, 12:34 PM

There are two trends and one thing to watch. First, it should be clear to everyone that there will be no serious anti-gun legislation before the 2010 elections.

1. The Democrats have a majority because they have pro-gun democrats in southern and other rural districts. If those guys vote to ban guns, they're gone and the Republicans take control of one or both houses.

2. Their 4 in Heller are far more likely to die or retire before our 5. There is no reason to assume that Obama will get to replace any of our 5. That said, cross your fingers for our 5's health.

The other issue here is that an Incorporation case may actually pick off one of the liberals over to our side. That would more cement Heller over the long term even though that would be a wishy washy vote on things like AW bans and the like. But we'd still have 5.

-Gene

7x57

04-12-2009, 1:17 PM

There are two trends and one thing to watch. First, it should be clear to everyone that there will be no serious anti-gun legislation before the 2010 elections.

I don't think that's set in stone, but it does appear that we'd have to screw up badly for it to happen.

The other issue here is that an Incorporation case may actually pick off one of the liberals over to our side. That would more cement Heller over the long term even though that would be a wishy washy vote on things like AW bans and the like. But we'd still have 5.

Why do you think one of the anti-Heller four would cross over for an Incorporation vote on a decision they disagreed with in the first place? Are you thinking of a decision restoring the P&I clause, and one of the four thinking that en bloc incorporation is worthwhile enough to stomach it in the context of the 2A? (Maybe they have to accept a 2A context if they want to do that at all--from what the lawyers say I wonder if it can't come up in the case of anything already incorporated via the selective doctrine, so unless the Feds are ready to start forcibly quartering soldiers in private homes in peacetime there are not that many Incorporation cases that can come up.)

7x57, thinking of starting a national campaign for his Third Amendment rights

626Tony

04-12-2009, 1:36 PM

what Easter news

hoffmang

04-12-2009, 2:38 PM

Why do you think one of the anti-Heller four would cross over for an Incorporation vote on a decision they disagreed with in the first place? Are you thinking of a decision restoring the P&I clause, and one of the four thinking that en bloc incorporation is worthwhile enough to stomach it in the context of the 2A? (Maybe they have to accept a 2A context if they want to do that at all--from what the lawyers say I wonder if it can't come up in the case of anything already incorporated via the selective doctrine, so unless the Feds are ready to start forcibly quartering soldiers in private homes in peacetime there are not that many Incorporation cases that can come up.)

P&I may cause some to cross to the majority, yes. Also, they've lost on Heller and they know it.

7x57, thinking of starting a national campaign for his Third Amendment rights
Already incorporated in New York State...

-Gene

TheBundo

04-12-2009, 3:17 PM

Sometimes SCOTUS has reversed itself by a wide margin in the space of 3 years or so. The margins of the former and latter votes were large and not related to changes in the makeup of the court - 3 justices publicly stated that they were wrong in the first ruling. Here is an example:

http://www.wvculture.org/history/government/barnette.html

7x57

04-12-2009, 3:27 PM

P&I may cause some to cross to the majority, yes. Also, they've lost on Heller and they know it.

If you believe reality would sway any of those four you are a more gracious man than I.

Already incorporated in New York State...

Yeah? How did that happen? Genuine incorporation of the Federal 3A against the state, or a duplicate protection in the state Constitution? Hmm...why, by gosh and by golly it's the real McCoy (http://en.wikipedia.org/wiki/Engblom_v._Carey). I didn't know any circuit had even considered a direct 3A claim, at least in anything approaching modern times.

Gosh, now I have to decide between living in NY and enjoying the freedom of my 3A rights and living elsewhere and enjoying my 2A rights. Oh, wait, I live in CA so I have neither. :eek:

7x57

CCWFacts

04-12-2009, 3:31 PM

Why do you think one of the anti-Heller four would cross over for an Incorporation vote on a decision they disagreed with in the first place? ... unless the Feds are ready to start forcibly quartering soldiers in private homes in peacetime there are not that many Incorporation cases that can come up.)

Remember, the right to abortion is incorporated. How and why? I don't know, but incorporation reaches many more issues than are listed in the Constitution and the BoR. Let's say some ultra-liberal judge wants to find there's a right to "free" health care, or a right to gay marriage or a right to be forced into mandatory volunteer national service or something, they would want a strong incorporation doctrine.

[3A] Already incorporated in New York State...

Indeed! (http://en.wikipedia.org/wiki/Engblom_v._Carey)

7x57

04-12-2009, 4:24 PM

Remember, the right to abortion is incorporated. How and why? I don't know, but incorporation reaches many more issues than are listed in the Constitution and the BoR. Let's say some ultra-liberal judge wants to find there's a right to "free" health care, or a right to gay marriage or a right to be forced into mandatory volunteer national service or something, they would want a strong incorporation doctrine.

Well and good, I am conservative to regard most or all of those as abuses of the law and are not what the Constitution says. But, well, the 14th says what it says too, and it says that the BoR and probably some other stuff is incorporated against the states. Therefore, I can't use possible abuse of the P&I clause as a reason to avoid what it says without invalidating my argument against other ways in which the Constitution is twisted to not mean what it says.

I probably won't ever say the right to Abortion is incorporated, no matter how legally correct that is, as no such Natural Right exists. I probably wouldn't use the language, but our usual terminology is so imprecise that it's difficult to discuss nuances like a de facto legal right that protects no natural right. But that would take us into the question of whether even Libertarians (to choose a group I actually have sympathy for that tends to believe in legalized abortion) *really* believe in Original Meaning, since the founders seem to have believed in Natural Law and didn't imagine that they'd forbidden any traditional Common Law implementation of the Natural Law. But quite a few Libertarians don't believe in the full Natural Law (though they often, admirably, believe in some subset of it) and thus, in their own way, have a tendency to not read the Constitution's original meaning. Those who really want Constitutional protection for abortion should simply seek a Constitutional amendment, in my view (and such an amendment would be automatically incorporated via the P&I clause according to, well, me).

But I try not to go too far afield on Calguns, and Libertarians and I see just about identically on the 2A which is more than enough for Calgunnery.

7x57

AngelDecoys

04-12-2009, 4:48 PM

If you believe reality would sway any of those four you are a more gracious man than I.

Any of those 4 might be willing to incorporate considering the benefits of a strengthened P&I. Its a tasty prospect and one that both sides favor.

As CCWFacts points out, essentially we get 2nd incorporation and (at the same time) open the door for the establishment of gay rights and the right to national health care.

Yeah? How did that happen? Genuine incorporation of the Federal 3A against the state, or a duplicate protection in the state Constitution?

-7x57

I asked Gene the same question almost a year ago. Not to put words in his mouth but since there's only been one circuit to hear a 3rd amendment case (quartering national guard units), one might argue that the rest of the circuits would follow the same ruling (incorporating). BTW - A 3rd case has never reached SCOTUS.

CCWFacts

04-12-2009, 6:28 PM

Well and good, I am conservative to regard most or all of those as abuses of the law and are not what the Constitution says. But, well, the 14th says what it says too, and it says that the BoR and probably some other stuff is incorporated against the states. Therefore, I can't use possible abuse of the P&I clause as a reason to avoid what it says without invalidating my argument against other ways in which the Constitution is twisted to not mean what it says.

I probably won't ever say the right to Abortion is incorporated, no matter how legally correct that is, as no such Natural Right exists.

I agree, I'm just listing "rights" that the liberal justices might wish existed, and therefore reasons why liberal justices might support a strong incorporation doctrine, and might even hold their noses to uphold incorporation of the 2A. That's what HoffmanG was suggesting when he said we might get some of the liberal justices to vote for incorporation even though they voted against Heller.

If somehow the right to abortion, which has no basis whatsoever in the text of the constitution, is incorporated, then surely the 2A, which is written right there, must be.

Likewise, I'm sure some justices are now hoping for a case when they get to declare that gay marriage is a right, and the right is incorporated. Given that there's no such thing as a federal marriage, having a Federal court ruling that upholds gay marriage but doesn't incorporate wouldn't do any good for gay marriage advocates. That's why some very liberal justices might be willing to incorporate the 2A: it gives them some cover in possibly incorporating a gay marriage ruling in the future.

That's the only point that I'm making.

I, personally, am strongly in favor of states' rights, and see Roe v. Wade as a violation of states' rights, among other reasons why I disagree with it.

Those who really want Constitutional protection for abortion should simply seek a Constitutional amendment

Yes, exactly. Likewise, those who really think we should not have a right to keep and bear arms should also seek a Constitutional amendment to take away our natural right.

TheBundo

04-12-2009, 8:35 PM

I'm a little lost here - what is "BoR" and "P&I"?

B.D.Dubloon

04-12-2009, 8:41 PM

I'm a little lost here - what is "BoR" and "P&I"?

Bill of Rights and I don't know. I think the I is incorporation maybe.

AngelDecoys

04-12-2009, 8:44 PM

I'm a little lost here - what is "BoR" and "P&I"?

BoR = Bill of Rights

P&I = 'Privileges & Immunities Clause' of the 14th Amendment

Nevermore

04-12-2009, 8:54 PM

I'm a little lost here - what is "BoR" and "P&I"?

Bill of Rights and "Privileges & Immunities (http://en.wikipedia.org/wiki/Privileges_or_Immunities_Clause)".
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States (Amendment XIV, Section 1, Clause 2)
It is one one of the ways in which a federally recognized right is enforced against the states, though this one hasn't been used much. The part under which the 14A where rights have been incorporated is the "Equal Protection (http://en.wikipedia.org/wiki/Equal_Protection_Clause)" clause of the 14A. (See links for more details)

7x57

04-12-2009, 9:19 PM

Any of those 4 might be willing to incorporate considering the benefits of a strengthened P&I. Its a tasty prospect and one that both sides favor.

Right, I agree that makes sense. My comment was that Gene said they know they've lost the argument in general, and I'm not gracious enough to think that believing they've lost the argument about the meaning of the 2A would make them hesitate to reject incorporation in a heartbeat.

7x57

7x57

04-12-2009, 9:34 PM

If somehow the right to abortion, which has no basis whatsoever in the text of the constitution, is incorporated, then surely the 2A, which is written right there, must be.

I agree that this is the way it should be, certainly. No matter what one's theory of implied rights (and that is a minefield of death, to be sure), it must remain the case that enumerate rights are at the highest level of certainty and protection. To do otherwise is, I think, nullifying the Constitution.

I, personally, am strongly in favor of states' rights, and see Roe v. Wade as a violation of states' rights, among other reasons why I disagree with it.

I am reasonably amenable to that argument. The main argument I could make for it being a federal issue would be a violation of a Right to Life, and I think that is a more plausible right than many the left seems certain are in there. If we accept their hermeneutic of indefinitely expanding implied rights, then I must argue for a federal, incorporated Right to Life. I more or less believe that there is such a Natural Right, after all, associated with the prohibition against murder, and I think the founders did too.

But in fact I think implied rights with actual legal protection should probably be limited to something like those necessary to exercise the enumerated ones, otherwise we have again created a text without enduring meaning, only reader response. And if we can make that limitation, then I am open to the strong possibility that it is a state power. My argument would be that most criminal law is a state matter anyway, including murder; now, while many believe abortion is less than murder it certainly cannot be more than infanticide. So if the states have the power to determine the precise boundaries of murder, then probably they and not the feds have that power for whatever we do with abortion.

If we are to have a federal system, we must accept it even when it prevents us from implementing our own pet policies at the federal level, and this could quite possibly be one such case. We have to eat our own dog food. And in fact I think many of the founders seemed to assume that if we wanted other Natural rights protected, we might have to add them at a later date (either to the state Constitutions or the federal one). Madison didn't seem to feel that way, however, but I'm not sure yet how he would handle legal protection of implied rights. Something to read more about someday.

Yes, exactly. Likewise, those who really think we should not have a right to keep and bear arms should also seek a Constitutional amendment to take away our natural right.

Yeah, a few have suggested it and I respect their integrity (if not their policy preferences). But it goes no where because that amounts to total capitulation; they know that getting such an amendment passed is utterly impossible. And since they believe their policy is necessary to civilization itself, they have to reject that avenue and continue to attempt to mangle the meaning of the 2A.

There are a few other stupidisms in the Constitution which I feel constrained to say would have to be amended away, and at that point I too have to throw up my hands in defeat because they won't happen. For that matter, I think direct election of Senators was a rotten idea, but we did that all legal as far as I know.

ETA; Hey, I'm past a kilopost now!

7x57

hoffmang

04-12-2009, 9:45 PM

Right, I agree that makes sense. My comment was that Gene said they know they've lost the argument in general, and I'm not gracious enough to think that believing they've lost the argument about the meaning of the 2A would make them hesitate to reject incorporation in a heartbeat.

So I was wrong about Ginsburg the first time around but you'll note that Scalia went after her personally in the majority opinion which leads me to believe that he too thought she'd vote the right way. That's a long form version of I've been wrong on that issue before.

However, SCOTUS is surprisingly politically aware. Unlike many here, they will see that the political support for further gun control was eroded even further after Heller. There was no backlash. None.

That will lower the costs of going over to a 6 judge majority and will have the bonus of broadening the un-enumerated rights. Some of those rights are things that reasonable mean can disagree upon, but they include the basic right to privacy...

-Gene

CCWFacts

04-12-2009, 10:04 PM

Yeah, a few [gun banners] have suggested [repealing the 2A] and I respect their integrity (if not their policy preferences). But it goes no where because that amounts to total capitulation; they know that getting such an amendment passed is utterly impossible.

Yup! Their only option they have that has integrity is utterly futile! Cool! And it's more fun to own and shoot guns than it is to get hysterical and ban them. Double-cool!

7x57

04-12-2009, 10:31 PM

That will lower the costs of going over to a 6 judge majority and will have the bonus of broadening the un-enumerated rights. Some of those rights are things that reasonable mean can disagree upon, but they include the basic right to privacy...

Hmm. Time to think hard about this implicit right thing again. Well, I'm always worried about unenumerated rights because in general that doctrine seems capable of producing anything at all. But as I said, it seems that at an absolute minimum those necessary to exercise the enumerated ones must be there, otherwise the BoR doesn't in fact protect very much at all. Since the authors and ratifiers did in fact believe it effectively protected the enumerated rights, this seems safe and sane within the meaning as they could have understood it even without looking at court decisions from the first fifty years or so. That's why I don't really have a problem with things like the exclusionary rule; it might not be the only or the best way, but I'm not aware of reasonable alternatives and it at least attempts to avoid nullifying the right in practical terms. If the BoR has not only meaning but effect, then I can't see how we can avoid that level of implicit rights getting dragged in by the enumerated ones.

On the other hand some of the Natural rights we know they believed in (or, to be fair, were at least willing to advance as part of an apologia for revolution) are so broad that they are of no use--a Right to Pursue Happiness doctrine can lead to anything permitted so far as it makes me happy, and that would destroy a huge swath of Common Law implementation of Natural Law that we know for a fact they accepted. Am I permitted to steal if I require that to be happy? No. They probably accepted "alienation of affections" as some sort of actionable thing, too, and what if my life is incomplete without a relationship another man's wife? So that one is of little practical legal use, so far as I can see.

Thinking that way, a Right to Privacy doctrine is interesting. I would like to see evidence that the first generation or two wrote about anything like it, because I would guess they would have accepted it as a natural right (as I tend to, though I can't say I feel I've thought enough to make a first-principles defense of it as a necessary component of Natural Law). But would they have regarded it as a Constitutionally protected right, and if so, under what theory? It isn't enumerated. So is it necessary to exercise an enumerated right? I'm not so sure it is.

OTOH, there might be some connection; perhaps it underlies things like the 3A (instead of or as well as a right to control the use of your own property), the right against unreasonable search, or some such. I'm not opposed to the idea that it's still safe and controlled to protect rights that underly some of the specific protections (I'd be happy enough to be able to argue for a Right of Self Defense underlying the specifics of the 2A, and indeed Heller more or less does this), but I'd feel much better about it if I had some reason to think they thought the right did in fact underly some specific provision (which Heller offers in the case of a right to self Defense, and which they most certainly believed in through at least Locke). I've read enough theology to have a pretty jaded view of just how far one can go creating systems to underly some set of givens and am not sure whether this is entirely controlled in general, but with some reasonable connection to the thought of that generation it could be safe.

Of course I'd like to be able to assert a Constitutional right to Privacy against certain recent surveillance doctrines, but I can't consistently do so unless I have a controlled way to find protection for Privacy. Otherwise, I'm just another Living Constitutionalist pursuing my own personal agenda.

And finally I'd like some sort of balance and control in the hermeneutical process. We can't give more protection to implicit rights than to enumerated ones, nor to ones found by some theory of underlying right than to those required to exercise an enumerated one, nor to free-floating ones than to plausibly underlying ones. The Living Constitution guys seem far more interested in the most heavy-handed protection of dubious rights than observance of the explicit ones, because (or so I always claim) because once you lose sight of a fixed meaning you are left with an arbitrary reader response that can be anything and mean anything. This becomes important when we have courts who absolutely will not defend a Right to Property, which the founders undoubtedly believed in.

If Eminent Domain can be indefinitely expanded, if people can openly discuss some sort of Reparations, and so on, then we have simply lost control. But the problem is that it is impossible to reconcile Marx and his many children with Jefferson and Locke, and we have plenty of people who absolutely will not let that stop them for a second. So however we read implicit rights, we have to stop short of producing results that the founders would have absolutely disavowed and repudiated.

7x57

lioneaglegriffin

04-12-2009, 11:01 PM

Hmm. Time to think hard about this implicit right thing again. Well, I'm always worried about unenumerated rights because in general that doctrine seems capable of producing anything at all. But as I said, it seems that at an absolute minimum those necessary to exercise the enumerated ones must be there, otherwise the BoR doesn't in fact protect very much at all. Since the authors and ratifiers did in fact believe it effectively protected the enumerated rights, this seems safe and sane within the meaning as they could have understood it even without looking at court decisions from the first fifty years or so. That's why I don't really have a problem with things like the exclusionary rule; it might not be the only or the best way, but I'm not aware of reasonable alternatives and it at least attempts to avoid nullifying the right in practical terms. If the BoR has not only meaning but effect, then I can't see how we can avoid that level of implicit rights getting dragged in by the enumerated ones.

On the other hand some of the Natural rights we know they believed in (or, to be fair, were at least willing to advance as part of an apologia for revolution) are so broad that they are of no use--a Right to Pursue Happiness doctrine can lead to anything permitted so far as it makes me happy, and that would destroy a huge swath of Common Law implementation of Natural Law that we know for a fact they accepted. Am I permitted to steal if I require that to be happy? No. They probably accepted "alienation of affections" as some sort of actionable thing, too, and what if my life is incomplete without a relationship another man's wife? So that one is of little practical legal use, so far as I can see.

Thinking that way, a Right to Privacy doctrine is interesting. I would like to see evidence that the first generation or two wrote about anything like it, because I would guess they would have accepted it as a natural right (as I tend to, though I can't say I feel I've thought enough to make a first-principles defense of it as a necessary component of Natural Law). But would they have regarded it as a Constitutionally protected right, and if so, under what theory? It isn't enumerated. So is it necessary to exercise an enumerated right? I'm not so sure it is.

OTOH, there might be some connection; perhaps it underlies things like the 3A (instead of or as well as a right to control the use of your own property), the right against unreasonable search, or some such. I'm not opposed to the idea that it's still safe and controlled to protect rights that underly some of the specific protections (I'd be happy enough to be able to argue for a Right of Self Defense underlying the specifics of the 2A, and indeed Heller more or less does this), but I'd feel much better about it if I had some reason to think they thought the right did in fact underly some specific provision (which Heller offers in the case of a right to self Defense, and which they most certainly believed in through at least Locke). I've read enough theology to have a pretty jaded view of just how far one can go creating systems to underly some set of givens and am not sure whether this is entirely controlled in general, but with some reasonable connection to the thought of that generation it could be safe.

Of course I'd like to be able to assert a Constitutional right to Privacy against certain recent surveillance doctrines, but I can't consistently do so unless I have a controlled way to find protection for Privacy. Otherwise, I'm just another Living Constitutionalist pursuing my own personal agenda.

And finally I'd like some sort of balance and control in the hermeneutical process. We can't give more protection to implicit rights than to enumerated ones, nor to ones found by some theory of underlying right than to those required to exercise an enumerated one, nor to free-floating ones than to plausibly underlying ones. The Living Constitution guys seem far more interested in the most heavy-handed protection of dubious rights than observance of the explicit ones, because (or so I always claim) because once you lose sight of a fixed meaning you are left with an arbitrary reader response that can be anything and mean anything. This becomes important when we have courts who absolutely will not defend a Right to Property, which the founders undoubtedly believed in.

If Eminent Domain can be indefinitely expanded, if people can openly discuss some sort of Reparations, and so on, then we have simply lost control. But the problem is that it is impossible to reconcile Marx and his many children with Jefferson and Locke, and we have plenty of people who absolutely will not let that stop them for a second. So however we read implicit rights, we have to stop short of producing results that the founders would have absolutely disavowed and repudiated.

7x57

why are you post so long it makes me not want to read them. :p

glockman19

04-13-2009, 6:27 AM

The reason they are holding off is because they are waiting for Ginsberg to retire. Once BHO appoints the next SCOTUS Justice they will attack the 2A with a full court press.

GM4spd

04-13-2009, 7:03 AM

This is pure theater on the Dem's part, I wouldn't count it out (AWB)
at all,they are just waiting for a time and place.The new cycle for
Congressional seats comes up next year in Nov. if the Dems think they are
doing well with Obama as pres they will go for it---if he isn't doing well
they won't risk having a vote prior to the election because a lot of Dems
will be hesitant to vote FOR it prior to the election. I have wondered but haven't asked any
political scholars if it is even necessary to vote on this. I wonder if
Obama can't just place an Executive Order and reinstate the whole thing
anytime he wants. Pete

Omega13device

04-13-2009, 9:25 AM

The reason they are holding off is because they are waiting for Ginsberg to retire. Once BHO appoints the next SCOTUS Justice they will attack the 2A with a full court press.
The balance of the court will only change if a conservative justice retires. Think about it.

hoffmang

04-13-2009, 9:10 PM

Thinking that way, a Right to Privacy doctrine is interesting. I would like to see evidence that the first generation or two wrote about anything like it, because I would guess they would have accepted it as a natural right (as I tend to, though I can't say I feel I've thought enough to make a first-principles defense of it as a necessary component of Natural Law). But would they have regarded it as a Constitutionally protected right, and if so, under what theory? It isn't enumerated. So is it necessary to exercise an enumerated right? I'm not so sure it is.

Don't forget number 9: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Those natural rights are rights just the same as the right to keep and bear arms.

-Gene

Gator Monroe

04-13-2009, 9:15 PM

The balance of the court will only change if a conservative justice retires. Think about it.

The makeup of the SCOTUS is not a factor now that FRANKEN is commin to Washington !:thumbsup:

7x57

04-13-2009, 10:34 PM

Don't forget number 9: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Those natural rights are rights just the same as the right to keep and bear arms.

Certainly, and I did guess that they might well have agreed that privacy is a Natural Right (but see quibbles below). But the question is what they expected it to mean Constitutionally when a Natural Right doesn't have explicit protection, and this isn't something my reading is deep enough to answer to my own satisfaction. They seem to have expected the legislature to be far more concerned with questions of rights than it has been for a very long time, whereas we have gotten to the point where we *expect* the legislative and executive branches to attempt everything and rights do not usually come in unless the judicial branch gets involved. That means they may have expected those rights to be generally protected by the legislature, particularly the House, and if that was found to be insufficient to then amend as necessary. I am not sure they expected the courts to decide on their own what those other rights are and protect them without any textual support. There is a reason for the amendment procedure.

Many find that a dangerous line of argument. Of course it is, but all government is dangerous, and I don't find it more dangerous than to become ever more detached from the text. Fidelity to the text has its own cost, and one cost is that you can't do as much as you can if the text means whatever the social consensus says it means. That's a design feature, not a bug. Sometime I need to get a big-picture idea of the civil rights court cases of the first fifty years or so (and quite possibly state cases) so I can see just how expansive a doctrine of implicit right they accepted.

Now the quibbles. We tend to use the notion of a Right to Privacy to attack laws that I suspect they would have attacked differently, for example based on personal sovereignty over home and property. That matters, because it is precisely the Right to Property (which they did seem to believe in) and freedom from government involvement in day-to-day life that has been most thoroughly compromised by our statists. We have a president who said that if you agreed with the founders on private property you were just selfish, after all. So I worry that an ever-expanding Right to Privacy doctrine can be a way to preserve a few valued bits of the Property rights that they otherwise desperately need to destroy for policy reasons. If so, we'd be better off fighting the actual fight instead of accepting the partial loss with an expanded Privacy right as consolation prize.

For example, Privacy won't help much in regaining the right to defend property, which they seem to have believed was justifiable. But if the government punishes that, it is just another variation on the theme of the government being on the side of criminals and not citizens, so it is important. Some restored notion of sovereignty over personal property does that and may also do much of what people want from Privacy (freedom from surveillance on your own property, for example). In other words--an otherwise good doctrine can hurt if it helps let another drop into desuetude. And we have about one and a half parties dedicated to the proposition that what you own you own purely on government sufferance as it is.

Here is a thought experiment for you: I personally believe that the most important unenumerated right is the right to determine your children's education (I started formulating this explicitly in the context of some European Jewish children taken away from their parents to be raised Christian). We know I can't in reality, but *should* I be able to sue for infringement of this right in federal court? It seems absolutely fundamental to me, but has no textual foundation. (Since this is fantasy we'll ignore possible incorporation issues, as in fantasyland we can just pretend the 14th will be obeyed as written.) To take a more edgy case, can a Muslim sue if the state prevents him from sending his children to a school which teaches that every Muslim's duty is to spread the dar-al-Islam, including Sharia law? That is traditional Islam, even though it is incompatible with the Constitution and also scary to many (including me). But if it's a Natural Right, and if unenumerated Natural Rights are to be regarded as Constitutionally protected, then the government cannot and should not prevent schools which openly teach radical Islam, or the coming Socialist Revolution, or the coming White Supremacist Revolution, or anything else. It won't be permitted opinions at all. But can I sue to enforce that based on this unenumerated right?

My gut feeling is that permitting the Constitutional defense of rights (as opposed to a defense in the legislature, which is clearly always fair game) that are not in some reasonably objective way related to the enumerated rights is simply another way of rewriting the Constitution through hermeneutics, and that they more or less knew that and expected explicit revision instead of reinterpretation. Thus I would be forced to defend a legal notion of right to Education by arguing its necessity in possessing some enumerated right (which in fact I have attempted), but I welcome arguments to the contrary.

I also welcome an education in what the law actually does in these cases--all that was essentially amateur philosophy and may or may not resemble American law.